Introduction to the Study of the Works of Jeremy Bentham, by John Hill Burton

Section VI.

Principles of Punishment.

The end of punishment is the prevention of crime; and all punishments inflicted under any other impulse, are wasted, or run the risk of being so. There is no other criterion of punishment which can be a fixed one. There may be mistakes and disputes as to what description of punishment is in reality best calculated to prevent crime; but with this principle in view, reasoners have a common field of argument; and the course of experience, enriched by the collection of statistical facts, will check aberrations, and bring the disputants more closely to each other in their mutual approach to accuracy. Those principles of punishment, if they can be called principles, which are involved in popular dicta, are as vague and indefinable as the human mind is various in its passions and prejudices. The simple word “ought,” sometimes involves the whole of the principle expounded. Murder ought to be punished with death. Forgery ought to be punished with death, &c. The supporters of a ministry will say, “sedition ought to be punished with transportation,” because they wish to humble and persecute their opponents. The opposition will say it ought not to be so punished — wishing to protect their friends from evil. When a riot takes place at an election, the party injured says the conduct of the mob was “dastardly brutal and ruffianly, and a parcel of them should be hanged:” those on the other side “are far from vindicating the conduct of the rioters; but it was a mere petty ebullition of party spirit, and a few days imprisonment will be a severe enough retribution.”

But it is not only in offences of a political character that the divergencies of the popular principle of punishment are exhibited. Each man, with his mind concentrated on his own interest and pleasure, holds all offences that militate against them as the most atrocious with which society can be visited; and when he has the power, he acts the Nero and Domitian, and exterminates those who give him trouble. Thus is it that the landholders of England, being resolved, at all hazards, to preserve to themselves the sports of the field, and having the power, through their preponderant representation in parliament, of making what laws on the subject they think fit, have enacted a code of game laws, which renders the preservation of the lives and morals of the people secondary to securing the monopoly in the destruction of hares and pheasants; and makes provision that the country should become depopulated by the transportation of criminals, rather than that the squire’s preserves should be thinned.

When an attempt is made to involve the popular feeling on the subject of punishment, in a proposition or principle, it does not in general become more reasonable. It is said that the punishment “should be equivalent to the offence;” or “should be of the same character as the offence;” or “should be like the offence.” There are no two things which less admit of real parallelism (however much they may of imaginative) than punishments and offences. Of two persons, precisely in the same rank of life, and of the same bodily frame, the one gets the other held down by accomplices, and inflicts on him certain blows with a stick. In this case it would not be difficult to assign a punishment precisely the parallel of the offence. But take another case. A thief puts his hand in a banker’s pocket as he is returning home from business, and extracts therefrom a bundle of bank notes. Where are the elements of similarity in the position of the two parties, out of which a punishment similar to the offence can be created? Nor, if the problem of finding a parallel could be solved, does it appear very distinctly how the public could be benefited by the elaboration of such a specimen of curious uniformity.

But another principle of punishment, and by far the most common, (for it has existence in many a bosom which is unconscious of its presence,) is retaliation — in other words, revenge, or obedience to the impulse of wrath. The case of an election mob cited above, may serve as an illustration. The principle of retaliation is frequently vindicated, as if it could be reduced to a fixed rule: but how can it be so, since, as has been already shown, there can be no parallelism between punishments and offences? For the very small number of cases which occur, exactly in terms of the instance of assault above cited, it would be easy to fix the rule of retaliation, by making the punishment identical with the offence. But who is to make a rule of retaliation for the banker robbed of his notes? The legislator has the whole field of inflictions out of which he may choose one which shall be a retaliation, and it is needless to say that his view of retaliation will be whatever his passions dictate. If the legislature should consist entirely of bankers, when he who has been robbed joins his peers with an empty pocket and inflamed passions, which sympathy and common interest propagate through the assembly, the retaliation, it is easy to believe, will be fierce and crushing. If the legislature should consist entirely of spendthrifts and pennyless younger sons, the sympathetic excitement would not be so intense, and the punishment would be more reasonable. If the legislature should consist of blacklegs and pickpockets, the worthy banker would be laughed at, and sent about his business. This last result, intended to exemplify the fallacy of any appeal to parties interested in an injustice, is not without a modified exemplification in this country. Bentham repeatedly refers to the exemption of real property from simple contract debts — the power of landed proprietors to undertake pecuniary engagements and protect their property from being seized in fulfilment of them. It was not until after his death, that this anomaly was partly rectified.*

It has to be noticed, that the retaliatory and other barbarous principles of punishment have produced counter-fallacies among those who have been groping about for the sound principles of punishment, and have been unable to find them. Thus, those who have an indistinct view of the defects of the punishment of death, say, “You are not entitled to deprive any man of the life which God has given him;” or, perhaps, “you are not permitted to take life, but for the crime of murder.” There is a text in Scripture which, referring to the effect of violence in rousing the retaliatory propensities of mankind, says, “Whoso sheddeth man’s blood, by man shall his blood be shed”— meaning, that while men are beings of passion as they are, one violent death will naturally follow another. It is under the shadow of what is apparently a misinterpretation of this text that the exception to the rule as to the title to punish with death is generally ensconced. It is to capital punishment that the question of title is usually restricted, but sometimes it is extended to others — thus, “you are not entitled to make a slave for life, of a man born free,” &c. — the term, for life, being generally inserted, because, if the punishment of slavery or the restriction of liberty were abolished, it would be difficult to find a means of inflicting any punishment on any one who has not palpable property capable of being seized. In the utilitarian system, the question of title is very simply disposed of, by striking the balance of good and evil to society at large. If there are cases in which the infliction of the punishment of death leaves a balance of good — that is to say, if more evil would be done to society through the inducement to crime that would exist were the punishment more lenient, than the evil occasioned by the infliction of the punishment — then let death be the allotted penalty. It will be for every man who has anything to say in the legislation of his country, to examine the question according to his abilities, to strike the balance, and to act accordingly. The conclusion come to by a member of the legislature will bear strongly on the result: that of an elector will have less effect, and that of a non-elector whose influence on the legislature is merely that of reasoning, will have still less: but it behoves them all, as members of society, to take the same method of coming to a right judgment.

It has been already remarked, that the Utilitarian Philosophy, like the Baconian, has not tended so much to point out any perfectly new direction to the human intellect, as to keep it steady in a course of which it had previously but a slight and vague knowledge, and from which it was every now and then straying. There is perhaps no department of the subject in which this is better developed, than the philosophy of punishment. On appealing to a moderately educated man in any civilized country, he would probably be found to admit, in some vague or general terms, that the object of punishment is the repression of crime. Yet so far have men, in the pursuit of their secondary ends, lost sight of this, the main one, that in England it became a general feeling, that it mattered not how many murders were committed, provided some one were hanged for each. Of the legitimate results of a scientific inquiry into the subject on the utilitarian principle, such as that carried on by Bentham and his disciples, the improvements which, for several years past, the legislature has been making in the administration of criminal justice, are so many illustrations.

In calculating the proper weight of punishment, the first element that comes into consideration is the offence. When it is scientifically examined, an offence is found to consist of more elements of evil than those which directly meet the senses. Bentham found a simple method of classifying the evils of a mischievous act, by dividing them into the primary and the secondary.* A man is murdered on the high-way: the death of the individual is the primary evil. The secondary evils arise out of the danger there exists of other people being murdered either by the same man, or by others following his example, and the alarm so occasioned in the neighbourhood. But it depends on a number of minute circumstances, what will be the extent of this danger and alarm, and, as a consequence, what will be the best legislative measures for protecting the people against them — and hence arises Bentham’s scientific analysis of crimes and their results, and his rules for adapting the punishment to the exigencies of each occasion.

To this end, in looking at the consequences of a mischievous act, among other circumstances, the following are kept in view: 1st, The state of the actor’s mind as to voluntariness or involuntariness. Thus, deliberate murder shows a disposition at war with mankind, from which any one may suffer who is in the position of supplying the assassin with a sufficient motive; while death, occasioned by carelessness, shows a want of respect for life, which the public must protect itself from; and uncontrollable accident is a source of mischief which punishment cannot protect from, and as to which its infliction would be thrown away. 2d, The motive of the offender. Thus, the motive of acquisition being in continual action, is found to be the most dangerous. When a man slays for vengeance, he only strikes his enemy; if he be allowed to go unpunished he will be prepared to slay some one else, but not till there has been a cause of enmity. The example of his impunity will encourage others to slay also, but only their enemies. But when a man murders for the sake of robbery, he acts on a motive which all men feel more or less towards all others; and those whom impunity encourages to follow his example, see victims in all of their fellow-beings who have anything to be deprived of. Other circumstances to be held in view are, the situation of the perpetrator in regard to the means of repeating the act, his means of concealing such acts, his means of escape, the obstacles he has overcome, the extent of temptation which was necessary to induce him to combat with them, &c. The position of the party injured must also be taken into view. Females, children, and invalids, require protection from acts against which able-bodied men need none. The poor require protection from injuries to which the rich are not liable — such as oppressive litigation. The rich, on the other hand, have their peculiar demands, chiefly arising from the superior amount of their property, on the protection of the law. There are, besides, many other circumstances in which the richer and higher classes of society are subjected to evils which do not fall on the lower. Their tastes and habits are more fastidious, and should be protected from wanton outrage. They possess a greater proportion of objects in which there is a “value in affection,”— such as heir-looms, old pleasure-grounds, &c.; and the law ought to look on these as having a value beyond their mere intrinsic worth.*

When the extent of the evil to society occasioned by each offence, has been as accurately estimated as human knowledge and reason admit of its being, the counteracting power, in the shape of punishment, has then to be graduated accordingly. And here it has to be kept in view, that the infliction of punishment is itself an evil — an evil not only to him on whom it is inflicted, but to the community by which the trouble and expense of inflicting it have been incurred. Every item, therefore, of punishment, beyond what is necessary to the production of preponderant good, is punishment wasted — is a wanton act of mischief — is a crime. If it can be proved that a crime can be suppressed by the infliction of a year’s imprisonment, and that the extension of imprisonment to two years will not make the suppression of it more complete, or tend more to the benefit of the public — then is the imposition of an imprisonment for two years, instead of for one year, a wanton act of injury. It is seldom that the superfluous punishment is designedly added to the necessary: the whole is generally awarded in rashness and ignorance, and thus resolves itself into the minor offence of a want of due care for the welfare of the public. Who shall justify the infliction of a year’s imprisonment, wantonly inflicted upon a man, though he be a criminal? If a justification be offered, let the following case, for the sake of distinctness, be taken. A man is tried for an offence, and the adequate punishment awarded against him is a year’s imprisonment. When he leaves the prison, he is again seized, and subjected to another year’s imprisonment; not because he has committed any fresh offence — not because his previous punishment was inadequate — but because he has been a criminal; and such a person may be punished, just as the prejudices and passions of those who administer the law may dictate.

The penal code being an institution intended for the benefit of the public at large, and the public consisting of individuals, there are two classes of persons prominently interested in its administration, whose claims have been overlooked in empirical systems of criminal law — the criminals themselves, and the individual against whom the crimes are committed. The principle of vengeance is at the root of the omission in both cases — the laws retaliate on the criminal, and the act of retaliation is considered a sufficient compensation to the injured. The utilitarian system views the matter differently — conceives that the person who has been robbed is not a savage, who is to be satiated with the blood of his adversary — and enjoins the criminal to labour to the end of making compensation, so far as it may be practicable, to the injured party. With regard to the criminal himself, the punishment, on the principles above laid down, must not be more than what is necessary to serve the legitimate purposes of punishment. If, while he is undergoing it, the convict can be reformed, there is not only a positive good done to himself, but a benefit is conferred on society, by restoring to its bosom a useful and moral man, at the expiry of the period of imprisonment. If, along with the accomplishment of this object, and of compensation to the injured party, the criminal can be compelled or induced to work, so as wholly or partly to defray the cost of his imprisonment, there is a still farther gain to society, by the reduction of a heavy burden — a burden which has a tendency to weigh against the zeal of the public in the enforcement of the laws.

Looking beyond the individual himself, to the effects of his punishment on society at large, reason will be found for deciding that it should be exemplary. As this is the element from which it derives its quality of awing the public into obedience to the laws, there might at first sight seem reason for concluding that the punishment cannot be too severe for such a purpose; but a little consideration will show, that it is its adaptation to this end that makes it chiefly of importance that the punishment, if brought up to the point which will be sufficient to deter by example, should not exceed it. Where punishments are not meted to offences, the criminal classes of the population see that the law hits at random; and, with the characteristic improvidence of their order, they gamble on its chances. Moreover, where punishments are unpopularly severe, the people will not give their assistance to the enforcement of the laws. The annals of English jurisprudence present even the official guardians of the law, the judges, joining with prosecutors, juries, and witnesses, in saving the criminal. The punishment of death for forgery has strikingly illustrated this truth. At the present moment the duellist is confounded with the assassin who steps behind his enemy and secretly stabs him. The public feel that the duellist injures society and should be punished; but they revolt at such a barbarous confusion of names and punishment; and the manslayer escapes by the connivance of the witnesses, the jury, the prosecutor, and the judge himself.

To deter others by the force of example, the punishment must, as nearly as human means can make it, follow the crime with the same regularity with which natural effects follow their causes. The certainty of imprisonment with hard labour will do far more in the way of prevention than the chance of suffering death. A proper allotment of punishment is one of the main ingredients in this certainty — others have been devised by Bentham, in his projects for the reform of criminal procedure.

It is necessary to the efficiency of the penal law, in the way of example, that the offence and the transactions concerning the trial and punishment, should not be encumbered with a barbarous technical nomenclature, which may shroud the real nature of the connexion between the crime and its punishment from the public eye. It is further necessary that the innocent should not be involved with the guilty — a result produced by the forfeitures, and corruption of blood, of the English law. The punishment should be awarded in virtue of a fixed law, and should neither actually be, nor appear to be, influenced either in increase or diminution by the will of an individual. Thus, laws awarding extravagant punishments, with a power of pardon or diminution, are unserviceable in the way of example. The punishment fixed by the law is either too high or not too high. If it be too high, it should be reduced: if it be not, the exercise of the pardon power, popularly called the prerogative of mercy, is an injury to society. Thus, wherever the pardon power is rightly exercised there is tyranny in the law — where it is wrongly exercised it is itself tyranny.

It is of the highest moment, for the sake of example, that the punishment should proceed, as far as may be practicable, before the eyes of the public. This object, as well as that of the reformation of the convict, is defeated by the plan of transportation to distant colonies. The criminal is removed from the sight and knowledge of those companions in iniquity to whom it is essential that his punishment, coupled with its cause, should be present as a perpetual warning; and instead of a lively consciousness of the sufferings and privation he is undergoing, experience too truly shows that they often envy his imagined lot, and raise day-dreams of independence and a wandering life in distant and fruitful lands, which serve a very different purpose from that of a solemn warning to depart from their evil ways. Another main object to be kept in view in punishment, is the avoidance of contamination. This is an evil which needs no further explanation. At the time when Bentham wrote, the jails were academies for instructing the youth, whom a petty indiscretion or a small offence had driven to them, in the higher and more complex walks of crime. Many reforms have been made in this department of prison discipline: but the repeated complaints of the press show how much remains still to be done.

It was to accomplish these objects, in relation to punishment, that Bentham devised the principles of prison discipline, expounded in his work on the Panopticon. The plan of the building, which was to admit of an inspection of all parts from a central point, was suggested by the architectural ingenuity of his brother, Sir Samuel Bentham. In this institution the prisoners were, without being subjected to the enervating and uncivilizing influence of solitary confinement, to be kept from communication with each other. They were to be kept at hard labour. As unproductive compulsory labour for the mere sake of punishment is in itself uneconomical, has no influence in improving the criminal, and tends to sour and harden his mind by the daily recurrence of inflictions, which have no other end but his personal vexation, the convicts were to be taught useful trades, as an encouragement to work; and, that they might have some opportunity of knowing how pleasing are the fruits of honest industry, they were to receive a portion of the results of their meritorious and successful exertion. They were to receive the ministrations of religion, and, to a certain extent, to be educated. Provision was made to supply them with a sufficiency of wholesome food, to ventilate all their apartments, and to keep them clean. Various methods were propounded for keeping their intellects from being stagnant, or viciously employed, when their hands were idle. And, finally, to prevent their being thrown upon the world with a tainted character, which might, by depriving them of the means of gaining their livelihood honestly, drive them back upon their old courses, arrangements were proposed for providing them with employment after their period of imprisonment had expired.*

But the founder of the Utilitarian system, looking upon punishment of every description as the application of medicine to a moral disease, goes back into the operations of the mind, that he may discover the causes in which the disease has its origin, and prescribe a regimen conducive to the preservation of the moral health of the public. In a system of punishment, he sees the political sanction only put in motion; but he finds that the Religious, and the Moral or Popular sanction, have each their respective spheres of action, in which they may be employed to restrain the mind from vicious inclinations. It is not by its restrictive action, in regard to this or that individual offence, that either of these sanctions will operate in its largest shape; but, by superinducing on the mind habits of thought so much opposed to crime, that when an opportunity of committing it occurs, the principle of restraint being an established feature in the mind, there is no actual struggle to resist the seeming temptation. In ordinary acquisitive crimes, the operation of the sanctions is strongly marked. To the greater portion of the well-educated and well-trained part of the population of Britain, an opportunity of committing a lucrative theft can scarcely be said to hold out any temptation; and the question, whether detection and punishment would be likely to follow —i.e. whether the political sanction would be called into operation, is not considered, for the religious and moral sanction have long ago fixed the course of action. Of the beneficial effects of the religious sanction, it is needless to adduce illustrations in a country where its influence is so strongly felt. As its good influences, however, are powerful, so are its evil, when it is directed to bad purposes. Its evil effects are — religious wars, persecutions, and assassinations; polemical disputation carried to the extent of rousing the bad passions; priestcraft; superstition; spiritual pride; and that chronic hypocrisy, so vividly exhibited in the character of Tartuffe, which, without directly assuming religion as a cloak to crime, arrogates a special familiarity with the Deity, which sanctifies all the worldly desires, and bad passions of “the elect.” As an illustration of the extent to which the operation of the sanctions may be ramified, the serviceable employment of the moral sanction in the prevention of violent crimes, may be found in the practice of inculcating humanity to animals in children. Minds callous to one description of animal suffering will not sympathize with another; and the murderer is nursed in the torturer of kittens. The knowledge of this truth is evinced in Hogarth’s stages of cruelty, and in the popular belief that butchers are incapacitated to serve as jurymen. As already stated, Bentham was desirous that the legal sanction should be brought to the aid of the popular in this department, and that cruelty to animals should be restrained by strict penal laws.*

His works abound with the promulgation of secondary operative measures for keeping the population pure from criminal propensities, the majority of which, to a greater or less degree, have been, and still are, the subject of public discussion. Among the most prominent of them is National education. The system for the management of the poor, having for its end the drying up the sources of poverty, would, by the same operation, dry up the main sources of crime —(see the next section.) The arrangements for training pauper children — foundlings and the outcasts of society — would have the effect of subjecting a class, whose world of public opinion is the professional emulation of felons, to the restraints and superintendence of the better portion of society; and of giving to those, whose fate seemed to place them at war with honesty and the laws, an industrial interest in the well-being of their country, and in the administration of its justice. Calamity and disease are looked upon, independently of their own distinctive evils, as generators of crime; and it is in this view that their prevention appeals to the interests and self-preservation of those who are, or may think themselves, excluded from their influence. The officers nominated in the Constitutional Code, for preserving the public against accidents and calamities, for guarding the public health, and for removing objects which, from their being noxious to the senses, are both dangerous to the health and demoralising in their immediate operation on the habits — are thus so many active agents clearing the moral atmosphere from the malaria which produces mental disease.*

* See Works, vol. v. p. 533; vi. 85.

* See Works, vol. i. p. 69 et seq., 215 et seq.; vi. 535.

* See Works, vol. i. p. 322.

* On the subject of Punishment generally, see the Rationale of Punishment, Works, vol. i. p. 388 et seq. See also the Principles of Morals and Legislation, at the commencement of vol. i.; iv. p. 1 et seq.; ix. 22 et seq. On the subject of the Panopticon, see vol. i. p. 498; iv. 39 et seq.; xi. 96 et seq.

* See Deontology, Principles of Morals and Legislation.

* These subjects will be more particularly considered in the next section.

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